We
allowed review to consider the state's contention that counsel's failure to
object at trial precluded the Court of Appeals from finding error at step one
of its analysis, thereby obviating the need for its exercise of discretion at the
second step.� We conclude that, because the record demonstrates that defense
counsel made a deliberate choice not to object to the admission of the hearsay
testimony, defendant's claim of error was not subject to appellate review, and
the Court of Appeals should not have conducted an analysis of whether
defendant's claim met the terms of ORAP 5.45(1).

The
parties do not dispute the relevant facts.� The state charged defendant with
first-degree robbery, first-degree burglary, and two counts of second-degree assault.
At a pretrial hearing, defendant waived his right to a jury trial, and the
state, the court, and defense counsel all agreed that, if defendant were guilty
of the crimes alleged, then he "should go to the State Hospital
rather than to prison." Cognizant of that potential disposition,
the parties agreed to proceed by having the court conduct a brief bench trial at
which the state would present its case through the testimony of the officer at
the scene.� That would permit defendant, who could not remember what had happened
on the night in question, as defense counsel phrased it, to "hear what the
witnesses' testimony against him would be."

Two people
testified at trial: �defendant and the officer who arrested him.� The officer
testified that, when he responded to a call from the victim's apartment, he
found the victim, a female, in an agitated state and her clothing ripped.�
Defendant was sitting on a couch, and a male, Newton, was standing over him.�
When the officer asked Newton to explain the situation, defendant picked up a
wooden dowel and struck Newton on the side of the head.� The officer subdued
defendant and placed him under arrest.� The officer testified that he told Newton
to leave the scene and, afterwards spoke to the victim, who relayed her
version of the events that had led to the summons of the officer.

Without
objection by defendant, the officer then testified to the events as the victim
had described them to him.� According to the officer's testimony, the victim
awoke in the middle of the night to loud banging at her apartment door.� When
she opened the door, defendant, who was a neighbor, began to yell and demand
marijuana.� The victim told defendant that she did not have and could not sell
marijuana; defendant forced his way into the apartment and attacked the victim
with the dowel.� Defendant used the dowel to hold the victim down and bit her more
than once.� Returning to his personal observations, the officer testified that
he had seen several injuries on the victim that were consistent with the events
that she had described to him.

When
defendant took the stand, his testimony diverged from that of the officer.� Defendant
told the court that he had been disturbed by noise coming from the victim's
apartment and went over there to complain.� The victim beckoned him to enter, and
although he did not recall what happened thereafter, he felt certain that he
did not strike the victim or Newton.

The
court then proceeded to the second step of the Ailes analysis and
considered various factors in deciding whether to exercise its discretion to review
defendant's claim of error.� Militating against review were the defense
strategy and its possible effect on the state's decision not to call the victim
as a witness.� The court explained: �

"First, there is a significant chance that, had
defendant objected, the state would have been able to prove its case by other
means.� Although * * * the record does not disclose anything about [the victim's]
availability, it is clear that she was neither a codefendant, an accomplice,
nor incapable.� It is quite likely that the state could have obtained her
in-court testimony about the events that transpired before the officer
arrived.� Second, the state may very well have believed that it was unnecessary
to do so based on statements made by defendant's attorney during the pretrial
motions hearing."

Id. at 641.� The court concluded that it would not review
the unpreserved claim of error and affirmed defendant's conviction.� Id. at
641-42.

The
state petitioned for review, asking us to rule that the Court of Appeals had erred
in affirming defendant's conviction at the second, rather than at the first,
step of the Ailes analysis.� The state also sought a ruling that the court
had erred in applying the "first-things-first" doctrine to a claim
that had not been asserted at trial. �We allowed the state's petition.

The state
first argues that an unpreserved Confrontation Clause claim of error never can meet
the requirements of the first step of the Ailes analysis and qualify as �error
apparent on the record because, when a defendant does not object to hearsay
testimony at trial, the trial court is entitled to assume that the defendant has
waived his or her right to confront the witness.� Alternatively, the state
contends, a defendant who does not object to hearsay at trial may have chosen
for strategic reasons to have the hearsay testimony admitted.� The state argues
that competing inferences about a defendant's strategy foreclose a reviewing
court from concluding, in that circumstance, that there is error apparent on
the record under ORAP 5.45(1).� We consider each of the state's arguments in
turn.

To the
state's argument that a defendant who fails to object at trial necessarily waives
his or her right to confrontation, defendant responds that the constitutional
right of confrontation cannot be waived by silence; that, absent an
on-the-record waiver, the trial court must assume that the defendant intends to
assert that right; and that, without such waiver, admission of the declarant's
testimony is always error.

In a
few specific instances, the concept of waiver has figured into this court's preservation
analysis.� Those instances involve constitutional rights that a defendant may
assert for the first time on appeal, provided that the defendant has not waived
those rights at trial and done so expressly, on the record.

There
are also instances in which, in the absence of a waiver, a defendant in a
criminal case may assert, for the first time on appeal, the violation of the
right to counsel under the federal and state constitutions. �See State v.
Meyrick, 313 Or 125, 831 P2d (1992) (holding that unless trial court record
discloses that unrepresented defendant knew of right to counsel and
intentionally relinquished right, defendant may assert violation of right to
counsel on appeal).� In such cases, a defendant does not relinquish the right
to counsel or the opportunity to raise a violation of that right on appeal
unless the record demonstrates that the defendant expressly waived the right to
counsel and that the waiver was voluntary, knowing, and intelligent.� The
reviewing court will not presume a waiver of the right to counsel from a silent
record.� Id. at 132.

In
this case, defendant argues that his federal constitutional right of
confrontation also is a right that he may assert on appeal, unless the record
discloses that he entered an express, knowing waiver of that right.� Defendant
cites Boykin v. Alabama, 395 US 238, 89 S Ct 1709, 23 L Ed 2d 274 (1969),
for that proposition.� In Boykin, the United States Supreme Court held that,
when a defendant pleads guilty, the trial court has a duty to make a record
that the defendant knowingly and voluntarily waived the right to jury trial,
including those attendant rights that the defendant would be entitled to assert
at trial -- viz. the right against self-incrimination and the right to
confront witnesses.� Id. at 243.� However, the Court did not hold that,
when a defendant asserts the right to a jury trial and obtains its benefits,
the defendant can waive the right to confront witnesses during the course of that
trial only if the defendant does so explicitly and on the record.� The Court
has not ruled that the federal constitution requires, in that circumstance, an
on-the-record waiver of the right to confrontation. �See Freytag v. Commissioner,
501 US 868, 894 n 2, 111 S Ct 2631, 115 L Ed 2d 764 (1991) (Scalia, J.,
concurring) (citing United States v. Whitten, 706
F2d 1000, 1018 n 7 (9th Cir 1983), cert den, 465 US 1100 (1984) (declining
to review on appeal Confrontation Clause objection not preserved at trial)); see
also Loggins v. Frey, 786 F2d 364, 367-68 (8th Cir 1986), cert den,
479 US 842 (noting that, "absent exceptional circumstances, a defendant is
bound by the tactical decision[] of competent counsel" not to assert confrontation
right).

A
trial court typically determines one time, before trial begins, whether a
defendant has made an informed decision to waive the right to jury trial or
counsel.� Generally, the right to confront witnesses is not similarly discrete.
�At the outset of trial, a defendant may not know that the state intends to
offer the testimony of a declarant through the testimony of another witness or
by use of an exhibit.� If the state offers hearsay evidence during trial, the
defendant may wish to insist on his or her right to cross-examine one
declarant, yet be content to allow the testimony of other declarants to enter
the record by other means.� Neither the wording of the state or federal constitutions,
nor existing precedent, provides that the right to confrontation can be
waived only explicitly on the record -- and with ample reason.� Such a
requirement would be unduly burdensome and disruptive to the pace and dynamic
process of the typical trial.

We decline
to hold that a defendant's silence in the face of hearsay testimony ipso
facto establishes a violation of the right of confrontation, as defendant
urges.� But we also are unwilling to adopt the converse conclusion for which
the state advocates.� "A waiver is the intentional relinquishment or
abandonment of a known right or privilege," Meyrick, 313 Or at 132,
and must be made "intelligently and knowingly," State v. Gullings,
244 Or 173, 182, 416 P2d 311 (1966).� Silence in the face of hearsay evidence does
not establish that a defendant knows of his or her right to confront the declarant
or that the defendant intentionally has relinquished that right.� A trial court
therefore is not entitled to assume a defendant's waiver of the right of
confrontation solely from a defendant's failure to object to hearsay testimony.�
Thus, in this case, defendant's failure to object to the officer's testimony did
not, in and of itself, amount to a waiver of his constitutional right of
confrontation.

In the
past, this court generally has declined to review unpreserved evidentiary
objections.� However, the court has not adopted the rationale that the state
urges, but instead has assumed the existence of evidentiary error and declined
review as an exercise of its discretion.� See, e.g.,State v. Cox,
337 Or 477, 500, 98 P3d 1103 (2004) (assuming, but not deciding, that admitting
hearsay statements was error, but declining to exercise discretion to reach the
issue); State v. Walton, 311 Or 223, 241, 809 P2d 81 (1991) (declining
to consider unpreserved Confrontation Clause claim); State v. King, 307
Or 332, 338, 768 P2d 391 (1989) (declining to consider unpreserved evidentiary
claims).� In fact, this court has considered unpreserved evidentiary error to
be reviewable on appeal in at least one case, State v. Bouse, 199 Or
676, 708-10, 264 P2d 800 (1953), overruled on other grounds by State v.
Fischer, 232 Or 558, 376 P2d 418 (1962) (determining that trial court
committed reversible error when it failed to exclude on its own motion
"extremely prejudicial and * * * inadmissible" testimony); see
also OEC 103(4) (noting that the rules of evidence do not preclude courts
from "taking notice of plain errors affecting substantial rights although
they were not brought to the attention of the court").

The
state presents this case as an appropriate vehicle for us to decide, or
reconsider, the methodology that should be used when a defendant urges
evidentiary error on appeal, but remained silent at trial.� However, the record
before us discloses not only that defendant failed to object to testimonial
hearsay when it was presented, but also that defense counsel stipulated to the
procedure that the state and the trial court followed.� In this case, the
record does not present an opportunity for us to address the role that silence
plays in reviewability, because defendant's trial strategy registers on the record
fortissimo.

Defendant
testified that he could not remember what had happened on the night in question,
but he also refused to admit that he had committed the wrongs alleged.� Nevertheless,
defendant's counsel and the state agreed that defendant's mental condition had prevented
him from conforming his behavior to the law and that he should be sentenced to
the state hospital.� Therefore, the parties agreed that they would proceed to
that disposition by participating in a brief bench trial and utilizing the
following procedure:� The state would establish defendant's acts through the
testimony of the officer; defendant would not admit that he had committed those
acts, but would gain the benefit of the sentence offered by the state.� At the
pretrial motions hearing, defense counsel stated that he had informed defendant
that

"there'll be a trial scheduled where the officer will
testify because one of the things [defendant] is saying is that he didn't do
anything.� And I said if the officer testifies he can then hear what the
witnesses' testimony against him would be."

Although the record in this
case does not disclose that defendant himself knew of his constitutional right
to confront the victim and intentionally relinquished it, it certainly establishes
that counsel for defendant made a strategic decision to permit the officer's
hearsay testimony.� Just as an individual defendant may intentionally
relinquish, and thereby waive, on the record, a constitutional right, so may
defense counsel state, on the record, a deliberate decision to have evidence
admitted that otherwise could be excluded.� In both instances, the defendant is
precluded from claiming the benefit of the exception to the rule of
preservation, not by failing to preserve an objection, but by affirmatively
establishing that the procedure the court followed was not objectionable to
defendant.

"No matter claimed as error will be considered on
appeal unless the claimed error was preserved in the lower court and is
assigned as error in the opening brief in accordance with this rule, provided
that the appellate court may consider an error of law apparent on the face of
the record."

"A person is guilty except for insanity if, as a result
of mental disease or defect at the time of engaging in criminal conduct, the
person lacks substantial capacity either to appreciate the criminality of the
conduct or to conform the conduct to the requirements of the law."

4.On
appeal, defendant also asserted that the trial court had erred in imposing
consecutive sentences without making the findings required by ORS 137.123(5).�
The Court of Appeals held that assertion to be without merit.� Steen,215 Or App at 637.� Defendant does not seek review of that issue.

5.The
reference in ORAP 5.45(1) to the "face" of the record traces back to
some of the earliest published rules of this court.� See Rule 12 (plain
error) of Rules of the Supreme Court, 100 Or 742, 749 (1921).� In earlier
times, rather than review the entire record, the court reviewed a written
abstract of the record prepared by the appellant, which by rule was required to
include whatever specific assignments of error the appellant wanted to raise,
along with the parts of the record necessary to consider them.� See
generally Redseker v. Wade, 69 Or 153, 159, 138 P 485 (1914) (discussing former
Rules 11 and 12 of the Oregon Supreme Court pertaining to assignments of error
and written abstracts of record).� The abstract of record apparently served as
the "face" of the record for purposes of the court's review.

Under our current procedures, an
appellant no longer prepares a written abstract of record.� Instead, in the
notice of appeal, the appellant designates either all or parts of the trial
court proceedings to be included in the record, which is then transmitted from
the trial court to the appellate court.� See ORAP 2.05(6) (party is free
to designate in the notice of appeal whatever parts of the proceedings and
exhibits are to be included in the record on appeal); ORAP 2.05(7) (party must
specify in the notice of appeal those points on which the party will rely only
if the party has not designated the entire record of the proceedings as the
record on appeal).� The continued reference in ORAP 5.45(1) to the "face"
of the record no longer serves a purpose and is surplus verbiage.� Therefore,
throughout this opinion, unless we are quoting the rule in its current form, we
refer to the exception as one that requires an error to be "apparent on
the record."� The court anticipates that, when the rules are next amended
in the ordinary course, ORAP 5.45(1) will be revised accordingly.

"In all criminal prosecutions, the accused shall have
the right to public trial by an impartial jury in the county in which the
offense shall have been committed; to be heard by himself and counsel; to
demand the nature and cause of the accusation against him, and to have a copy
thereof; to meet the witnesses face to face, and to have compulsory
process for obtaining witnesses in his favor * * *."

"In all criminal prosecutions, the accused shall have
the right to public trial by an impartial jury * * * any accused person, in
other than capital cases, and with the consent of the trial judge, may elect
to waive trial by jury and consent to be tried by the judge of the court alone,
such election to be in writing[.]"

"The Court uses the term 'waive' instead of 'forfeit,'
* * *. �The two are really not the same, although our cases have so often used
them interchangeably that it may be too late to introduce precision. �Waiver,
the 'intentional relinquishment or abandonment of a known right or privilege,' Johnson
v. Zerbst, [304 US 458, 464, 58 S Ct 1019, 1023, 82 L Ed 1461 (1938)], is
merely one means by which a forfeiture may occur. �Some rights may be forfeited
by means short of waiver, see, e.g., Levine v. United States,
[362 US 610, 619, 80 S Ct 1038, 4 L Ed 2d 989 (1960)] (right to public trial);
United States v. Bascaro, [742 F2d 1335, 1365 (11th Cir 1984)] (right
against double jeopardy), [cert den sub nom Hobson v. United States, 472
US 1017]; [Whitten, 706 F 2d at 1018� n 7] (right to confront adverse
witnesses) * * *, but others may not, see, e.g., Johnson,
supra (right to counsel); Patton v. United States, [281 US 276, 312,
50 S Ct 253, 74 L Ed 854 (1930)] (right to trial by jury). �A right that cannot
be waived cannot be forfeited by other means (at least in the same proceeding),
but the converse is not true."

10.Because
we decide that the Court of Appeals should not have conducted an analysis of
whether the threshold requirements of ORAP 5.45(1) were met, we do not consider
whether its use of the first-things-first methodology was appropriate.